Failures in Judicial Case Allocation and Gatekeeping

We have seen a number of cases recently where the courts are failing to follow rules in relation to case allocation. Some of the worst examples include:

leave to remove cases (where one parent seeks to remove the children abroad).

complex cases previously heard in senior courts ending up heard by magistrates who fail to examine case history prior to varying the existing orders (which came before them for enforcement).

In short, the wrong level of judge is hearing cases in breach of court rules and guidance. If your case is allocated to the wrong level of judge, ask for it to be moved to the right level by writing into the court. We suggest writing into the court where the application was made, and addressing your letter to the Designated Family Judge (DFJ) responsible for Gatekeeping and Case Allocation. If you can, take the letter into court, hand it into the court administration department and ask for a receipt to confirm delivery. After this, if matters continue to be heard at the wrong level, write a position statement including a request for the case to be transferred and deliver this to court two days before the next hearing. Raise the matter orally at the hearing and take a copy of that position statement and the letter sent to the DFJ into court with you.

Case outcomes can be put at risk when too junior a judge hears them. This is why the rules exist to ensure more complex cases are heard by more experienced judiciary. In this article, we remind people of how cases should be allocated and the rules which govern this. Please reference the guidance we cite when asking that the court move proceedings to the correct level of judge.

Sections 23 to 28 of The President’s Guidance on Case Allocation and Gatekeeping explain how case allocation in family law proceedings should happen. Cases will be allocated to magistrates unless the circumstances of the case meet the criteria set out in Parts 1 to 3 of the Schedule to the Allocation and Gatekeeping Guidance ‐ Private Law [April 2014]. In essence, cases involving degrees of complexity should be heard by more senior judiciary, whose experience and knowledge of law and strategies will be greater and more likely to see successful outcome.

Cases for variation of enforcement should be heard by the same level of judge who made an order, and ideally the same judge for the purpose of continuity, or one more senior where the cases has increased complexity.

Case Allocation: Leave to Remove
Cases involving leave to remove should not be heard by magistrates. Allocation should be to:

District Judge or senior where cases involve leave to remove children (permanently or temporarily) from the jurisdiction to Hague Convention and/or EU countries.

Circuit Judge or senior where cases involve leave to remove (permanently or temporarily) from the jurisdiction to Hague Convention and/or EU countries which are factually or legally complex.

Case Allocation: Enforcement
Where the court is considering enforcement of existing orders, these cases should ideally be heard by the same judge who made those orders, and failing this a judge at same or more senior level. Again, the Schedule to the Allocation and Gatekeeping Guidance ‐ Private Law [April 2014] is crystal clear:

Cases involving the enforcement of existing orders made by a District Judge or cases where a District Judge has previously made orders in relation to the same parties. Allocation should be to the same District Judge where practicable.

Cases seeking enforcement of existing Orders made by a Circuit Judge or Recorder or in cases where a Circuit Judge or Recorder has previously made orders in relation to the same parties. Allocation should be to the same Circuit Judge or Recorder where practicable.

Cases where Committal is Being Considered
In relation to committal proceedings for non-compliance (contempt of court), we wish to remind that there is statutory guidance set out in The Family Court (Composition and Distribution of Business) Rules 2014. Rule 17(5) is repeated below and applies to existing proceedings AND ones where a final order was made to which the committal proceedings relate:

“(5) Any power of the family court to make an order for committal in respect of a breach of a judgment, order or undertaking to do or abstain from doing an act may only be made by a judge of the same level as, or of a higher level than, the judge who make the judgment or order, or who accepted the undertaking, as the case may be”

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